Idaho marriages on hold, and judge wonders why

Same-sex couples in Idaho can’t get married because of what the U.S. Supreme Court said in a Utah case more than four months ago — that a federal court ruling overturning a state marriage law should be put on hold when the state appeals. That doesn’t make sense to at least one judge on the Ninth U.S. Circuit Court of Appeals, who says he can’t see how allowing gays and lesbians to wed during the appeal process would harm the state.

The law approved by Idaho’s voters in 2006, banning both same-sex marriage and civil unions, was declared unconstitutional last week by U.S. Magistrate Candy Dale, who said it was an act of intentional discrimination that violated fundamental rights, harmed parents and children and had no offsetting benefits for the state or its residents. It was part of a wave of federal court rulings following last year’s Supreme Court decision that struck down a congressional ban on federal benefits for same-sex spouses and found that such laws demean loving couples and their children.

A day before Dale’s ruling, Idaho Gov. Butch Otter had already filed with the appeals court in San Francisco for a stay that would prohibit same-same marriages during the appellate process. Allowing those marriages to go ahead, his lawyers said, would lead to “chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions” seen in other states.

The court complied, and followed up with an order this Tuesday citing the controlling authority — the Supreme Court’s Jan. 6 order blocking same-sex weddings in Utah while the state appealed lower-court rulings striking down its marriage restrictions.

But Judge Andrew Hurwitz, part of the three-member Ninth Circuit panel, said he was signing the stay order only because of the Supreme Court’s mandate, and otherwise would reach a different conclusion.

Halting the marriages harms same-sex couples, whose rights are at stake, while the only foreseeable harm from allowing the weddings to proceed would be their uncertain legal status, Hurwitz said — something that would mainly affect the couples, who can make their own decisions on whether to proceed.

He also said the court normally requires a state that wants to stay an unfavorable ruling to show that it has a strong chance of winning its appeal. The case is likely to end up in the Supreme Court, where “I do not venture to predict” the result, Hurwitz said, but he saws little prospect that the Ninth Circuit would reverse Dale’s decision. Under a recent ruling in a California jury-selection case, the circuit requires a state to provide strong evidence of the need for any law that discriminates on the basis of sexual orientation, and it’s hard to see how Idaho can meet that burden in this case, Hurwitz said.

The former Arizona Supreme Court justice was appointed to the federal court by President Obama and was the only Democratic appointee on the panel. The other two members, Judges Edward Leavy and Consuelo Callahan, didn’t comment on the stay order, but issued an expedited schedule that calls for a hearing the second week of September in San Francisco, before a different panel.

The situation is different in Pennsylvania and Oregon, the latest states whose same-sex marriage bans were struck down by federal judges. Governors of those states have decided not to appeal, and the marriages are proceeding.